MR N RAMSEY v WALKERS SNACK FOODS LTD [2004] UKEAT 0601_03_1302

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0601_03_1302Case No Appeal No. UKEAT/0601/03/MAA & UKEAT/0602/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR N RAMSEYAPPELLANTWALKERS SNACK FOODS LTDRESPONDENT(1) MR S HAMBLET (2) MR R TREWEEKEAPPELLANT(1) WALKERS SNACK FOODS LTD (2) MR D McDONNELLRESPONDENT
Before
His Honour Judge Ansell Mr J C Shrigley Mr G H WrightDate 13 February 2004
[1]APPEARANCES For the Appellants MR EDWARD LEGARD (of Counsel) Instructed by: Messrs Thompsons Solicitors St Nicholas Building St Nicholas Street Newcastle upon Tyne NE1 1TH For the Respondents MR ROBERT THOMAS (of Counsel) Messrs Eversheds LLP Solicitors Central Square South Orchard Street Newcastle upon Tyne NE1 3XX HIS HONOUR JUDGE ANSELL These two linked appeals relate to decisions made in two linked hearings before an Employment Tribunal in Newcastle who, having heard the case in November and December 2002 and January 2003 in lengthy and detailed decisions promulgated on 10 June 2003 held that the three former employees of Walkers Snack Foods Ltd had not been unfairly dismissed. Similar findings were made in respect of the cases of four other employees who have not appealed. Leave for this hearing was given by His Honour Judge D Levy QC in chambers on 31 July 2003[2]These three employees all worked at the Respondent's Peterlee crisp factory and were dismissed on the grounds that they were part of a "scam" at the factory involving the unauthorised removal of crisp packets from the production line, which packets were believed to contain sums of money which had been inserted into the packets during the Respondent's "Moneybags" sales promotion.[3]The core of this appeal is the decision made by the employers to dismiss based primarily on written statements from fellow employees at the factory who had remained anonymous. Those employees had originally given statements to Mrs Louise Patterson, the Human Resources Manager at the factory but thereafter in the course of the further investigations and the disciplinary process those informants were not further interviewed by any other managers.[4]The Appellants contend that the manner in which the statements were originally taken, their lack of detail and the failure both of the investigating officer and dismissing officer to question these witnesses rendered the whole process unfair and in particular because such a procedure fell foul of the guidelines for dealing with anonymous witnesses/informants, set out by this court in the case of Linfood Cash & Carry Ltd v Thomson [1989] IRLR 235.[5]Before passing to the facts as found by the Tribunal we believe that it would be helpful to set out the general legal framework for this type of case which was correctly set out by the Tribunal in paragraph 8 of both decisions.[6]Section 98 (4) of the Employment Rights Act 1996 provides that: 98 (4) "Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and(b) shall be determined in accordance with equity and the substantial merits of the case."[7]The approach to cases of misconduct was formulated by Arnold J in British Home Stores Ltd v Burchell [1980] ICR 303 where, at page 304, he stated:
"What the Tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief ; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case"
[8]In the Linfood case evidence of dishonesty against two employees concerning the theft of two books of credit notes had come from a fellow employee who had refused to allow his identity to be disclosed because of fear of physical reprisals. An Industrial Tribunal had held that the dismissal was unfair because although the employers had a genuine belief in the employee's guilt they had no reasonable ground for that belief and had not carried out as much investigation into the matter as was reasonable in all the circumstances; and in particular considered that in the absence of any corroborative evidence, a most stringent enquiry should have been made by management to ascertain that the informant was not actuated by improper motives.[9]In dismissing the appeal this Court (Wood J presiding) set out guidance in dealing with informant evidence against employees who were accused of misconduct: 19 "We have been told by both sides that there seems to be no decision of this court giving guidance upon appropriate procedures for an employer to adopt where informants are involved. It is obvious that from whichever side of industry one looks it is important that dishonesty and lack of trust should, where possible, be eliminated, but a careful balance must be maintained between the desirability to protect informants who are genuinely in fear, and providing a fair hearing of issues for employees who are accused of misconduct. We are told that there is no clear guidance to be found from ACAS publications, and the lay members of this court have given me the benefit of their wide experience. 20 Every case must depend upon its own facts, and circumstances may vary widely – indeed with further experience other aspects may demonstrate themselves – but we hope that the following comments may prove to be of assistance: 1. The information given by the informant should be reduced into writing in one or more statements. Initially these statements should be taken without regard to the fact that in those cases where anonymity is to be preserved, it may subsequently prove to be necessary to omit or erase certain parts of the statements before submission to others – in order to prevent identification. 2. In taking statements the following seem important:(a) date, time and place of each or any observation or incident;(b) the opportunity and ability to observe clearly and with accuracy;(c) the circumstantial evidence such as knowledge of a system, or the reason for the presence of the informer and why certain small details are memorable;(d) whether the informant has suffered at the hands of the accused or has any other reason to fabricate, whether from personal grudge or any other reason or principle. 3. Further investigation can then take place either to confirm or undermine the information given. Corroboration is clearly desirable. 4. Tactful inquiries may well be thought suitable and advisable into the character and background of the informant or any other information which may tend to add or detract from the value of the information. 5. If the informant is prepared to attend a disciplinary hearing, no problem with arise, but if, as in the present case, the employer is satisfied that the fear is genuine then a decision will need to be made whether or not to continue with the disciplinary process. 6. If it is to continue, then it seems to us desirable that at each stage of those procedures the member of management responsible for that hearing should himself interview the informant and satisfy himself that weight is to be given to the information. 7. The written statement of the informant – if necessary with omissions to avoid identification – should be made available to the employee and his representatives. 8. If the employee or his representative raises any particular and relevant issue which should be put to the informant, then it may be desirable to adjourn for the chairman to make further inquiries of that informant. 9. Although it is always desirable for notes to be taken during disciplinary procedures, it seems to us to be particularly important that full and careful notes should be taken in these cases. 10. Although not peculiar to cases where informants have been the cause for the initiation of an investigation, it seems to us important that if evidence from an investigating officer is to be taken at a hearing it should, where possible, be prepared in a written form. 21 This case also appears to highlight the problems facing a Tribunal when considering credibility. As Mr O'Hara confirmed to us, the tribunal must not substitute their own view for the view of the employer, and thus they should be putting to themselves the question – could this employer acting reasonably and fairly in these circumstances properly accept the facts and opinions which it did? The evidence is that given during the disciplinary procedures and not that which is given before the Tribunal. 22 If a Tribunal is to say that this employer could not reasonably have accepted a witness as truthful, it seems to us that that decision must be based upon logical and substantial grounds – good reasons. Instances might be – that the witness was a bare faced liar, who must have given that impression to the employer at the relevant time; that the witness was clearly biased – provided that such a bias should have been clear at the relevant time; that documents available at the relevant time clearly showed the witness to be inaccurate and that such documentary evidence was ignored by the employer. 23 However, there could be other less obvious situations where mere vagueness and uncertainty would not be sufficient, and it should never be forgotten that cross-examination by experienced advocates may produce a picture not made evident during the disciplinary procedures. For the Tribunal merely to prefer one witness to another might well not be sufficient as this could be to substitute their own view. The employers have the peculiar advantage over the Tribunal of having an intimate knowledge of the geography, the nature and workings of the business and the various members of the staff."[10]As stated above, the Appellants are all employees of the Respondents at their Peterlee crisp factory. The Respondents are part of a larger multi-national company and in this country have a workforce of 4,000 with 400 at this particular factory, which produces about one-third of potato crisps sold by the Respondents within the United Kingdom and about one-fifth of all crisps consumed in this country. They work a shift system and the crisps are processed on one of three lines, each of which contains a number of different machines.[11]Mr Hamblet and Mr Treweeke both worked on line 3; Mr Hamblet as a Packaging Technician responsible for the checking and packaging of crisp packets and Mr Treweeke as a Flavour Technician based on a mezzanine floor above the manufacturing machines. Mr Ramsey worked as a General Technician on line 2, responsible for general duties on that line including the collection and disposal of waste. There was a waste area common to all three lines some distance away from the actual production lines.[12]The overall workforce of 4,000 included about 35 employees in Human Resources Departments at each factory and its head office, including Mrs Patterson, the Human Resources Manager at the Peterlee plant.[13]Mr Hamblet as part of his duties would be required at regular intervals to remove packets of crisps in order to check their quality and to weigh them, and would also have to remove packets in the event of some form of malfunction. The Tribunal found that on occasion this might involve bursting open or "popping" a packet.[14]For several months in the year 2000 and again in August 2001 the Respondents operated a sales promotion known as 'Moneybags'. Sealed blue sachets would be inserted into packets of crisps, some of which contained merely a coupon which could be exchanged for another packet of crisps without charge, but others contained either £5 or £20. Those which contained money, with a total value of some £6,500 per day, were inserted by employees of a security firm employed by the Respondents feeding the sachets into the manufacturing process. The Respondents estimated that approximately 1 in 10 packets of crisps manufactured during those runs when money was being inserted, would actually contain money sachets. The Respondents would know the manufacturing run of crisps that contained money but there was no separate identification for any particular packet that actually had money in it.[15]Considerable confidentiality surrounded the delivery times and insertion schedules which were deliberately irregular, but certainly the process of insertion would be visible to those in the immediate area of the machinery. Employees of the Respondents are well aware that the theft of any of these monies would be regarded as an extremely serious offence leading to summary dismissal.[16]It was recognised that from time to time sachets or packets containing them might find their way onto the factory floor as part of the checking or waste process and at various locations there were sited honesty boxes into which employees were told that the sachets should be placed.[17]Peterlee was created and developed as a new town based upon former mining communities which the Tribunal found to remain as somewhat close knit. There was also a history of incidents of intimidation and retribution at the hands of employees when they felt that fellow employees were co-operating too closely with management.[18]On 6 September 2001 and again on the following morning a total of three employees at the Peterlee factory separately approached a different front line manager, one of whom was Ms Slee who worked on line 2 and alleged that some of their colleagues had been stealing money inserted in the crisp packets as part of the promotion, and in at least one instance this had happened in the waste management area. The three employees insisted that they should remain anonymous. The management decided upon increased presence and vigilance but nothing untoward was then detected.[19]On 7 September Ms Slee visited the waste management area and saw Mr Ramsey on one side of the compactor machine and on the other side Mr Critchlow and Mr Dunn leaning over the skip. Ms Slee heard what she believed was a warning whistle and Dunn and Critchlow immediately left the area. Examination of the skip revealed several hundred crisp packets, the majority of which had been opened, and many of them contained sachets which had also been opened, although impossible to say whether or not they contained money; certainly the packets had come from a run during which Moneybag sachets had been inserted. There was no good reason for the presence of that number of packets in the skip.[20]That same day Critchlow and Dunn and also Mr Ramsey were suspended. Mr Ramsey's locker was searched and it was found to contain 13 bags of crisps; two were loose and another 11 were inside a white plastic bag which was in itself inside a gold coloured bag. Without the latter the packets would have been discernable through the white plastic. His first response was to say that he had obtained them from reception for his own personal use. He was later to give other explanations. Most of the packets had been processed on line 3 on a particular day and whilst they were processed at the time when sachets were not being inserted the Tribunal found that Mr Ramsey would not have been able to see that line from the places where he worked on line 2. They also found the precise times at which several of the packets were manufactured which was apparent from the information provided upon them appeared to be inconsistent with any contention that he had obtained them during one of his rest breaks. He was later to contend that he had obtained the packets from line 3 during his breaks and carrying them by hand, either from the machine or the top of the line and that he later changed those locations to the bins.[21]Mr Francis, the Factory Manager, having consulted with Mrs Patterson and others, concluded that there would have to be a full investigation and decided to seek the assistance of the workforce in the identification of anyone who had maybe taken part in the theft.[22]It was decided that the employees should be invited to do this on an anonymous basis and the Tribunal were satisfied that unless this approach was adopted no employee would come forward with information. It was a decision taken by the management in their knowledge of the workforce, the communities in which they lived, and the previous incidents to which we have referred, and in particular because those who had come forward a few days earlier had done so upon a strict insistence on anonymity.[23]The staff were offered the choice of three telephone hotline numbers which were to be manned by Mrs Patterson, Mr Williams (Site Service Manager) and another personnel officer. The investigation was then to be carried out by Mr Williams supported by Mr Gill who was a former police officer and an employee of the Respondents' security contractors.[24]A point was raised in the appeal that Mr Gill may have been acting in breach of Company policy, but no objection was taken to his involvement at any stage in the procedure and we cannot find any fault in that approach.[25]Mr Francis thereafter spoke to each shift urging those present to supply any relevant information guaranteeing anonymity and providing the confidential phone numbers.[26]In the course of the following week a number of calls were received from employees, the vast majority coming to Mrs Patterson although one came to Mr Williams. She passed on to Mr Williams her understanding of what was being alleged. The allegations related principally to individuals who worked on lines 2 and 3 including the three Appellants together with others.[27]All the informants specifically insisted that they should not be identified, not merely to those who had been named as possible perpetrators but to any other members of the workforce, they being in real fear of the retaliatory reaction or being ostracised and/or assaults upon their persons and property.[28]During this process it was decided that contact with the informants should be confined to one manager, namely Mrs Patterson. She had taken most of the calls and indeed at that point only she knew the identities of almost all of the callers and was also perceived as being the person most trusted by the workforce. The Tribunal accepted with some hesitation that she was aware of the general guidelines as set out in the Linfood case.[29]On page 9 of their decision the Tribunal dealt specifically with whether or not these informants would have been prepared to speak to any other manager and they set out the position thus: 5 (k) "None of those who came forward to make allegations was asked in terms whether he or she would be prepared to speak directly to any other manager in particular either of those who was to act respectively as investigating officer and the holder of any disciplinary hearings. Nevertheless, we accepted that this possibility was considered and rejected by management. We did so notwithstanding that Mr Francis spoke to individuals in circumstances to which we shall refer: indeed, his experience reinforced the view expressed by Mrs Patterson and accepted by senior management generally namely that the only way to reassure those who were coming forward, so as to persuade them to make or at least approve written statements setting out that which they were prepared to say, was very severely to limit those who knew of their identities and in particular to ensure that they could be told that this was not known to other managers whom they might not trust as much as Mrs Patterson. That view was formed and reinforced as Mrs Patterson spoke further to the individuals coming forward. None of them would meet her within the confines of the factory lest others see them and work out what they were doing. It would seem that some would not meet her at all and only ever spoke to her on the telephone. Others would not let her visit their homes, making it clear that other members of their own family were not aware that they were providing information, clearly in fear of the reaction if the fact were discovered. One never revealed his or her identity to Mrs Patterson although it was known to Mr Francis probably as a result of his interview on 18 September 2001. Many were visibly frightened and some were in tears. We would add that, as we made clear to the parties during the course of the case, in one of his investigative meetings Mr Critchlow had said that – although he had no direct evidence to give – he had heard rumours about thefts from sachets but was not prepared to give them information at all because of the reaction of those with whom he worked and indeed that he had "done it before when I was a facilitator – go back on line and no one wants to talk to you". That evidence did not play a significant part in our deliberations but it did tend to confirm that which in our judgment the individual callers were telling Mrs Patterson. She was of the view and her superiors accepted that, if the individuals had to be interviewed at length by another manager, they would be unlikely to continue to provide information." As a result of this information Mr Hamblet and Treweeke were suspended with full pay pending further investigation by Mr Williams, together with a Mr Bell and Mr Defty.[30]Once the Appellants had been removed from line 3 Mr Francis privately interviewed every remaining person who worked upon it and urged them to inform the Respondents of anything they knew about the alleged thefts. Mr Francis made some notes but did not write down any detailed response, even if (which the Tribunal found most unlikely) such was given. He simply referred on to Mrs Patterson anyone who indicated they might be prepared to give any information at all. He also went through the same action with regard to line 2.[31]This did mean that Mr Francis was aware of the identities of some of those who might have been prepared to come forward, together with at least some general knowledge of what they might be prepared to say; but he had no knowledge of who in fact had or was prepared to speak to Mrs Patterson.[32]Having passed matters on to her, Mr Francis destroyed his notes and the Tribunal accepted he did this because he was extremely concerned that his office was relatively insecure and that some employees might be gravely concerned if his notes fell into the hands of others.[33]At the end of their decision the Tribunal did express the view that it might have been better if he had passed his notes on to Mrs Patterson, although of course even that might have amounted to a breach of confidentiality in some cases, but would have enabled Mrs Patterson to compare that which any individual told her with that which the person had told Mr Francis.[34]Mr Williams and Mr Gill then began the process of interviewing these three Appellants together with the others who had been implicated and detailed notes of those interviews are available. In the main they were conducted in the presence of a union representative, Mr Stevenson. As a result of an issue raised by Mr Hamblet it was necessary for Mr Williams to speak to his front line manager Mr Keith. He had also alleged that another employee, Mr Bell (who had been linked into the scam as a possible lookout) was in fact not working on the line at the relevant time because of medical reasons, and it was ascertained that he in fact was performing light duties, although he was doing so on line 3; but had had in the recent past a great deal of absence from work.[35]Mrs Patterson then began the process of writing out statements of all those anonymous witnesses who were prepared to commit themselves on paper. The Tribunal dealt with this process in detail on pages 13 and 14 of their decision: 5 (r) "On 18 September 2003, Mrs Patterson began the process of writing out statements on behalf of all those anonymous witnesses who were prepared to commit themselves on paper. That process was completed over the course of the following four days. In the event, some sixteen individuals made or approved statements in this way. Mrs Patterson also asked and recorded their answers to a number of set questions which included their degree of certainty as to identification, whether there were any difficulties in their relationships with those whom they identified and why they were not prepared to come forward as a named witness. Of course, given the fact these were anonymous statements, none of them were signed by their makers. Furthermore, because to have done so might have revealed who they were, the statements did not give details about the nature or location of their jobs, where they were standing when incidents occurred or the dates and times of the incidents. Indeed, the statements were drafted in relatively general terms. Most of them were finalised over the telephone although Mrs Patterson had spoken directly to most (but not all) of the informants. Of course, a great deal more detail was known to Mrs Patterson and it was she who was responsible for editing each informant's account so that it contained as much information as was consistent with the preservation of the anonymity of the maker. That which was in the statements was all that was to be revealed not only to the applicants and such of their colleagues as were the subject of formal investigation but to other members of management in particular Mr Williams, Mr Patton and in due course those who were to hear the appeals. We accepted that Mrs Patterson took considerable care with the statements in order to test their accuracy and to ensure that they recorded accurately that which the informant wished to say and, having typed them out, she read them back to each individual in order to get his or her approval. Before us, it emerged that a number of the informants were packing technicians as opposed to general operators and that all of those who purported to be eye witnesses to acts of theft fell into the former category. It further emerged before us, and we accepted, that amongst the informants there was only one instance of overlapping: by that we mean that only one of the individuals to whom reference is made in the statements as someone who gave information to the maker of the statement (all but one of whom were known by name to Mrs Patterson) was himself or herself the maker of a statement. Mrs Patterson very frankly told us that, having talked to all the informants and having done her best to probe what they said, she was absolutely satisfied not merely of their honesty but of the accuracy of their accounts. In due course, her views were sought by both Mr Williams and Mr Patton. She told them that she believed that the witnesses were reliable and truthful. Before considering the statements in so far as they relate to each individual applicant, we should also refer to a number of other general facts. It was decided within the respondent that – although the most important allegations made in the statements would be, indeed to some extent had already been, put to each applicant so that he would know the basis of the case against him – he would not at any stage receive copies of any of the statements. That was essentially because of the respondent's anxiety to preserve anonymity. It was felt that it might be possible to identify individual informants by the collation and comparison of all the statements. That was a genuine and reasonable conclusion. In due course, when their cases proceeded to disciplinary hearings, each applicant was shown copies of all the statements which mentioned him and was allowed to discuss them with the statements which mentioned him and was allowed to discuss them with his representative. He was not shown any of the statements which contained allegations only made against another individual: they were felt to be irrelevant to his own case. Indeed, although they were only partially successful, efforts were to be made to blank out on each statement the name of anyone else accused. Furthermore, even then each applicant was not allowed to take away the copies of any statements disclosed to him: that was again for fear that a comparison by all the applicants of all their statements might identify some of the makers."[36]In relation to these witnesses eleven makers of statements had referred to Mr Hamblet of whom six claimed directly to have witnessed activity which they described as suspicious, the rest being hearsay, the Appellant Treweeke was named by a total of eight informants, of whom two purported to have witnessed dishonest activity; and Mr Ramsey was named by three witnesses, of whom only one gave direct evidence.[37]All of the statements were passed on to Mr Williams who considered them, together with a statement from Mrs Patterson in which she confirmed that which she had said orally to Mr Williams and was to repeat to Mr Patton who was carrying out the disciplinary hearing, that she believed that "all of the witnesses are honest and trustworthy" and that they are "reliable sources of information". She also said that she knew the identity of all but one of the witnesses and that in particular they had good reputations and standing in the plant; and that she was confident they had all come forward in good faith. She added that Mr Francis was aware of the identity of the other witness and that he had assured her that the other employee was also trustworthy and reliable.[38]Mr Williams went on to re-interview the Appellants, none of whom suggested that anybody in the plant bore a particular grudge against them.[39]Mr Williams, having spoken on several occasions to Mrs Patterson, also carried out general enquiries within the factory and obtained from her some information as to where informants were said to have been standing when they saw some of that which they described. The Tribunal record that Mr Williams was not aware that there could be legitimate reasons for technicians to "pop a packet", although the Tribunal later explained that in terms it was the volume of packets that had been popped that caused concern. Mr Williams did not cause any further questions to be put to the anonymous witnesses through Mrs Patterson and other than the interview notes with the suspects did not make any notes of such further enquiries that he did make, nor did he produce a written report. He presented his views to Mr Patton and went through the statements and notes of interview, although again no note was made of that meeting. On another occasion Mrs Patterson spoke to Mr Patton and gave her view that the anonymous witnesses were reliable.[40]Mr Patton then commenced the various disciplinary hearings towards the end of September 2001 and again Mr Stevenson represented the employees. Full notes were taken of all those meetings. For the first time the employees were allowed to read the statements from the anonymous witnesses and given time to consider them.[41]The Appellants and Mr Stevenson set out a number of questions which they wished to be put by Mrs Patterson to the anonymous witnesses. All the witnesses had already answered a series of final pro forma questions in which they were asked as to whether they could be certain of the identification of those they had named, whether they had any difficulties in their relationships with those people and the frequency that they had either seen or heard of the relevant matters. They were also asked why they were not prepared to come forward as a named witness.[42]The additional questions emanating from the disciplinary hearings were put to Mrs Patterson by Mr Patton. Some of them could not be answered because by doing so, for example giving dates and locations, would effectively disclose the witnesses' identities. Mrs Patterson sent to Mr Patton a list of the answers that could be obtained. All three Appellants raised these supplemental questions and in the case of Mr Treweeke this was done on two occasions.[43]Because Mr Hamblet had suggested that his normal duties might have been mistaken for thefts of inserts, Mr Patton asked Mrs Patterson how many of the statements had been made by packaging technicians who might be expected to be in the best position or understand what he would normally be doing. The answer recorded was that more than half of those who implicated him were packaging technicians.[44]A question had been raised of witness 'H' as to whether Mr Hamblet could not have been checking waste on the basis that he was next to the reject bin, the time and date on which he was taking inserts offline and in relation to breaks whether he could have been returning early because of a changeover. No answers were recorded to those questions and the Tribunal recorded that it was likely that those questions were either not put to 'H' or, if they were, the answers were not relayed to Mr Patton. They described that as unfortunate but recorded that in their view he would not have answered the second question and that there was a negligible prospect that his answers to the other questions would have been helpful to Mr Hamblet. They continued as follows:
"In particular, it would be almost inconceivable that someone who had claimed to have seen the first applicant open packets next to the reject bin and then walk away from an honesty box "with blue money inserts in his hand" would have agreed that on reflection he could have been checking waste."
[45]The Tribunal record that in carrying out the disciplinary process Mr Patton had impressed them in his evidence as a careful, methodical and genuine witness and aware of the required standard of proof. In particular they record that he was well aware that some of the contentions were hearsay but acknowledged that others purported to be eye witness accounts; and bore in mind that Mrs Patterson's view that the informants were reliable and trustworthy. He also noted that one of the employees, Mr Ashford, had admitted theft of one amount. He noted that there was no evidence of any grudge against Mr Hamblet and concluded that the witnesses were not all making the matters up and was satisfied to a higher degree that Mr Hamblet had on numerous occasions watched the activities of security officers whilst they were distributing money inserts and then remove from the line packets of potato crisps, amongst which there would be a number which were very likely to contain money, so that he or others might sort through the bags at a later stage and remove that money.[46]At the conclusion of the disciplinary hearing against Mr Treweeke he made a similar finding, coming to the conclusion that he had been involved in the thefts and that probably with the help, or at least the knowledge, of Mr Hamblet and another he had taken up to the flavour floor boxes or packets of potato crisps which had been identified by others as being likely to contain money and that he there sorted through those packets.[47]In the case of Mr Ramsey, Mr Patton again analysed the statements and the Tribunal record that he was well aware that there was only one purported eye witness, the remainder of the allegations being hearsay. Again he bore in mind Mrs Patterson's view that the informants were reliable and trustworthy and noted that there was no evidence of any grudge against the Appellant.[48]He regarded as suspicious the fact that Mr Ramsey happened to be in the waste management area when Mr Critchlow and Mr Dunn were raking through the skip containing packets of crisps into which money appeared to have been inserted, although placed no real reliance on that bearing in mind that Mr Ramsey's duties would have taken him into that area.[49]He considered unsatisfactory his explanation for the presence in his locker of 13 packets and although at an early stage Mr Ramsey contended that none of them could have contained money inserts, he found that he could not have been certain about that fact as he did not work on the line from which he had taken them. He also noted that Mr Ramsey had given three different explanations as to where he had obtained those packets and regarded as wholly unsatisfactory the explanation he gave for why 11 of the packets of crisps were inside one plastic bag which was in itself in another plastic bag simply to save space inside a small locker. He came to the view that the real reason was his intention to take the packets out of the factory, which conflicted with his stated reason which was to eat them at break-time. Overall he took the view that that could amount to evidence of some form of sorting operation.[50]In conclusion he was satisfied to a high degree that Mr Ramsey had on a number of occasions removed from the line packets of potato crisps amongst which would be a number which were very likely to contain money.[51]All three Appellants exercised their right of appeal. Mr de Hollander heard and dismissed the appeal of Mr Treweeke. Mr Grover heard and dismissed the appeals of Mr Hamblet and Mr Ramsey. All three Appellants were represented before the appeal hearing and the Tribunal was satisfied that the managers conducting the appeal did so with an open mind. In all three cases the managers were satisfied that the witness statements were reliable and true and in particular referred to the judgment of Mrs Patterson as to the credibility of witnesses being sound and fair.[52]Before us, as before the Tribunal, Mr Legard strenuously and eloquently sets out his complaints regarding the procedure adopted by the employers and in particular their failure to follow the Linfood guidelines. His principal areas of concern are as follows:(1) the failure of Mr Francis to keep and/or pass on to Mrs Patterson notes of any conversations with prospective witnesses so that she could test the detail she was given as against that that had been provided to Mr Francis;(2) Mrs Patterson's failure to prepare at the outset full statements from each witness, i.e. containing details as to dates, places and methods of visibility before those statements were edited first to provide anonymity for the witnesses;(3) over-editing of the statements so that the Appellants had a total inability to check the detail of what their accusers were saying, e.g. were they actually working on the same day that their accusers had alleged that they were taking part in dishonest activities;(4) the absence of any evidence before the employers that Mrs Patterson had actually checked the detail given to her by the informants, e.g. were they actually at work on the same day as the Appellants and did they have the opportunity to observe what the Appellants were doing;(5) Mr Williams' failure to keep any notes in relation to his enquiries (other than the interviews with the Appellants) and or to provide a written report of his conclusions to Mr Patton.(6) the failure of Mr Williams and/or Mr Patton and/or the appeal officers to personally interview the informants and satisfy themselves as to what weight was to be given to the information. He couples this with a complaint that Mrs Patterson was over-involved in the process at every stage and in particular her view as to the credibility of the informants, provided the basis of all subsequent decisions taken by the Respondents;(7) a failure to distinguish between direct and hearsay evidence, resulting in a decision being taken simply on the numbers of witnesses involved;(8) a failure to investigate assertions made by the Appellants and in particular to obtain the answers to the questions put to witness 'H';(9) over-reliance on the evidence of the crisp packets found in Mr Ramsey's locker, particularly in relation to the assertion from witness 'N1' that Mr Ramsey was known to have taken crisp packets from the factory for onward sale.[53]The Tribunal in its conclusions attempted to deal with many of these issues. In accepting that the Linfood guidelines were not followed completely they were of the view that that did not of itself render unfair either the procedure or the dismissal which resulted since the overriding test is that laid down by Section 98 (4). They also reminded themselves of Wood J's words in dealing with the guidelines, that "Every case must depend upon its own facts, and circumstances may vary widely – indeed with further experience other aspects may demonstrate themselves…"[54]We would whole-heartedly agree with that comment. As Wood J acknowledged, his decision was the first time that this court had been asked to deal with the proper approach to witnesses who for good reasons wished to remain anonymous and in the context of the Linfood case where there was only one anonymous informer on whom the employers sought to place considerable reliance. This case appears to throw up two particular problems which were not apparent to the court in Linfood , namely:(1) the unwillingness of informants to sign a statement unless it had been sufficiently edited so as to remove any risk of identification; and(2) their unwillingness to be exposed to further questioning by other managers within the investigatory and/or disciplinary process for risk of their identities being revealed with the resulting reprisals that they feared.[55]It seems to us that these are real problems, particularly within the confines of a factory in a close knit community, where retribution and reprisal were a real risk that the employers in this case had to deal with. We fully accept that those difficulties have to be balanced against issues of fairness as far as the Appellant is concerned. There is always the risk that the anonymous informant is seeking to hide his untruthfulness underneath the veil of anonymity and is seeking to use that veil as a pretence for not being further examined by other managers within the organisation. Any anonymous witness will limit the ability of the accused to meet allegations made by unidentified people and in very general terms.[56]It seems to us therefore that what is called for in terms of assessing the fairness of the employers' approach is to look at the reasons they gave for granting the anonymity in the first place, the terms of that anonymity and whether it should extend to being interviewed by other managers, and the subsequent preparation of statements. Was it a reasonable approach for Mrs Patterson to express a view as to the veracity and the accuracy of what she was being told and for that view to permeate through the rest of the disciplinary process?[57]The Tribunal made the clearest of findings that the offer of anonymity was not unreasonable in the circumstances of this case. They reminded themselves that the three individuals who had come forward on the day before the incident involving the skip had done so expressly on the basis that they would remain anonymous. In those circumstances the Tribunal found that the Respondents genuinely reasonably believed that no further information would be provided unless it was on an entirely confidential basis; and that was the offer that Mr Francis made to the shift meetings. The Tribunal found that: 10 "This was not simply self-fulfilling prophesy: those who approved statements only did so because they knew that would continue not to be identified and even then many others who had come forward refused to go any further. The respondent genuinely and reasonably believed in the employees' expressions of fear."[58]The Tribunal then went on to consider whether it was reasonable for that anonymity to be extended so that neither Mr Williams, nor Mr Patton, nor indeed Mr Grover, nor Mr de Hollander was able to directly test that which the informant had to say but had to rely substantially on the belief of Mrs Patterson and in one case Mr Francis that the informants were reliable and trustworthy. The Tribunal dealt with this issue as follows: 10 "This was the issue which caused us particular concern. On behalf of the applicants it was submitted, in effect, that Mr Williams and Mr Patton abnegated their own responsibility in the matter and in reality relied entirely upon others. They pointed out that none of the makers of the statements was asked whether he or she would discuss the matter in confidence with either Mr Williams or Mr Patton. After a great deal of anxious consideration, we came to the conclusion that in the particular circumstances of these cases the respondent did not act unreasonably in approaching the matter in this way. It would have been quite apparent to Mrs Patterson in particular, and also Mr Francis from his lesser involvement, that the witnesses were terrified of their identities becoming unknown. That was evidenced by the very great care which they took to prevent anyone, in some cases even family members, from finding out about their contact with Mrs Patterson. Indeed, at least one maker of a statement (that whose name was known to Mr Francis) never met her at all and only spoke to her by telephone. We accepted that it must have been abundantly apparent to management that the question which was not asked did not need to [be] asked and that it was vital that as few people as possible knew the names of the informants. That simply could not have been achieved if Mr Patton had carried out the task which was undertaken by Mrs Patterson. Indeed, it is most likely – and certainly the respondent reasonably believed otherwise – that the informants would have trusted him or anyone other than Mrs Patterson and perhaps Mr Francis."[59]We cannot find any fault with the Tribunal's approach in the manner that they analysed the employer's actions in the context of the necessity of obtaining information about dishonesty in a factory in a close knit community where the slightest whiff of co-operation with the management could have the most serious consequences.[60]The demands of anonymity would therefore mean that even in their original form the statements could not contain the sort of detail that the Linfood guidelines suggested should be contained. The Tribunal made the clearest of findings that the informants were not willing to put their name to paper unless there was sufficient editing. In any event, under the Linfood guidelines it is clearly envisaged that the statements will be edited before they are submitted to others to prevent identification.[61]On two occasions within the Tribunal decision the Tribunal found that Mrs Patterson had explored the detail with the witnesses and was genuinely reasonably satisfied that they indicated reliability. Her knowledge of the workforce was in our view sufficient to cover the point raised by Wood J in relation to tactful enquiries in relation to the character and background of the informants. She also had investigated, as did others within the process, whether the informant could have had any form of personal grudge against the person that he was seeking to accuse.[62]The guidelines also envisage the employee or his representative raising particular and relevant issues which could be put to the informant which took place in this case with regard to each of the three Appellants.[63]As regards the issue of notes and other documentation, we have already commented upon the failure of Mr Francis to pass on such notes as he had about those potential witnesses who had spoken to him, thereby depriving Mrs Patterson of the possible opportunity of comparing that which she had been told with the information given to Mr Francis. The Tribunal concluded, however, that this act of Mr Francis did not render the entire process unfair. We see no reason to interfere with that decision.[64]Mr Williams similarly did not make notes of the additional enquiries he carried out within the factory. But the Tribunal accepted that both Mr Williams and indeed Mr Patton had looked into additional matters raised by each Appellant including issues about a grudge. Indeed Mr Williams had raised those additional enquiries in the course of further interviews with each Appellant. Although he did not produce a written report, the Tribunal accepted that he did come to the conclusion that in the case of these Appellants and others the matter should proceed to a disciplinary hearing before Mr Patton and that it was his decision and not that of someone else. He presented his views to Mr Patton and they went through the statements and the notes of interview. Those statements and interview notes clearly formed the bulk of Mr Williams' enquiries and to that extent we are satisfied that the guidelines were complied with. The Tribunal also concluded that any shortcomings were not such as to render the investigation unfair, coming to the conclusion also that his investigation was not a sham.[65]As regards Mrs Patterson's continuing involvement, this was dealt with in paragraph 11 of the Tribunal's decision as follows: 11 "Mrs Patterson was criticised for the breadth of her involvement in these cases. It was true that, over the weekend of 8-9 September 2001, she advised Mr Francis and other members of senior management as to the appropriate procedure, she discussed matters with the respondent's solicitors, she was then one of those who was in charge of a hotline telephone number, she was given the task of interviewing the anonymous witnesses and taking (indeed, editing) their statements, she discussed matters in some detail with both Mr Williams and Mr Patton, she took notes at some interviews of applicants, she checked the letters of dismissal, she spoke in due course to both Mr Grover and Mr de Hollander and she also played a part in the wording of the letters by which the appeals were dismissed. However, she was the senior human resources manager based at Peterlee and the activities which we have outlined, in so far as they were not connected to her role as a witness, were in reality directly related to personnel issues. She was the obvious and indeed appropriate person to deal with those matters. We were satisfied that she was careful to ensure that she did not take any part in the making of decisions and merely explained what the witnesses were alleging together with her view as to their reliability and truthfulness. She was very conscious of the fact that she had not talked to any of the applicants. We accepted that the conclusions set out in each of the letters were those of the person who signed it and that Mrs Patterson was primarily concerned with their format."[66]Clearly if these employees were not to be seen at a later stage by those carrying out the investigation and/or the disciplinary process the Tribunal would have to satisfy themselves that Mrs Patterson was an appropriate person to form a view as to the credibility of the anonymous witnesses, such that it was reasonable for others in the process to rely upon her view.[67]It is clear from the Tribunal's decision as a whole that they were impressed with Mrs Patterson as a witness and as to her intimate knowledge of the workforce and the particular individuals involved; and as to the reasons she took for adopting the procedure in this case.[68]Again, we can find no fault with the Tribunal's approach in accepting the employers' actions, particularly those of Mrs Patterson as falling within the band of responses of a reasonable employer.[69]In relation to the other criticisms of the procedure adopted by the employers we would comment briefly as follows:(1) We do not agree that in coming to his conclusions Mr Patton adopted simply a numbers approach. The Tribunal in paragraph 14 went into detail in relation to Mr Patton's actions and concluded that they were satisfied that he had considered each case separately and without prejudgment. It is also clear from the Tribunal's factual summary that Mr Patton was very much aware of the issue involving the difference between direct and hearsay evidence;(2) Mr Legard repeated his criticism that the Appellants did not receive any letter setting out the charges against them and that at the disciplinary hearing Mr Patton had told them merely that they were accused of theft of money inserts which were so vague as to be meaningless. The Tribunal dealt with this contention in paragraph 12 of their decision and we are satisfied that from the outset the Appellants were very well aware of the allegations against them, namely of theft of money distributed in the course of the 'Money bags' promotion. That was the sole issue at the various investigatory meetings with Mr Williams and by the time of the disciplinary hearings the allegations had crystallised into the matters that were contained in the anonymous witness statements which were shown to them;(3) The next allegation concerns a failure to check details raised either in the course of the Williams interviews or within the disciplinary hearings. We have already commented that the Tribunal was satisfied that Mr Williams did look into the matters that were raised before him, particularly by Mr Hamblet, albeit that notes were not taken and we have again already commented upon the actions taken by each employee in raising issues with the anonymous witnesses. Whilst the questions to witness 'H' were not answered, the Tribunal dealt with that issue in our view in a satisfactory manner as we have outlined above and we can find no criticism in that approach.[70]Accordingly, we can find no grounds to interfere with the Tribunal's decision. We fully appreciate that our decision means a departure from the Linfood guidelines for the reasons that we have fully explained. It is trite to say that guidelines are not law, otherwise they would be in a statute; and indeed Wood J accepted that further industrial experience may demonstrate other aspects of the problems that arise in dealing with anonymous witnesses.[71]Those problems arose in this case and we are satisfied that these employers dealt with the matter properly, maintaining the balance between "the desirability to protect informants who are genuinely in fear" and providing a fair hearing of issues for employees who are accused of misconduct.[72]There was overwhelming evidence of misconduct in this case against all three Appellants and we are quite satisfied that both the employers and the Tribunal came to the correct decision.